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Brexit and The Common Travel Area

04 January 2018 McGill & Co Solicitors Brexit & EU Migration

Shortly before Christmas, the UK Government announced that an agreement had been reached with the Irish Government which ensures that the rights enjoyed by British and Irish citizens under the Common Travel Area (CTA) are protected after the UK leaves the EU. The CTA includes the UK, the Republic of Ireland, the Channel Islands, and the Isle of Man. British and Irish citizens are entitled to free movement within the CTA (this is independent of any free movement rights derived from EU law). 

The UK Government states in the recent announcement, published on 22 December 2017, that “no UK or Irish nationals will be required to apply for settled status to protect their entitlements in Ireland and the UK respectively”. Other EU nationals will need to apply for settled status (see our previous post on the recent agreement on citizens’ rights here).

The announcement contains very little detail and it is unclear whether the UK Government intends to introduce new legislation to protect the position of Irish citizens living in the UK or whether Irish citizens will need to rely on the existing legislation relating to the CTA. If the latter, the suggestion that no Irish citizens living in the UK will need to apply for settled status is misleading.

Not every Irish citizen living in the UK will be entitled to reside here on the basis of a CTA entitlement. Some may be relying on EU free movement rights. Many will be completely unaware which set of rights apply to them as, until recently, it has been irrelevant. Section 50A(5)(b) of the British Nationality Act 1981 provides that, in order to have a CTA entitlement, a person must have last arrived in the UK on a local journey from the Republic of Ireland. Similarly, section 1(3) of the Immigration Act 1971provides that a person arriving in the UK from a local journey does not require leave to enter the UK (a.k.a a visa). A local journey is one that begins and ends within the CTA.

As such, an Irish citizen who last entered the UK from France (having taken a break from their continuous residence in the UK for a holiday) does not have a CTA entitlement. The only reason a person in this situation is able to enter the UK without a visa, live here, and work here, is due to EU free movement law. Those relying on EU free movement law in order to continue living in the UK will need to apply for settled status if they wish to remain in the UK lawfully after 29 March 2021 (two years after the UK leaves the EU).

It is entirely unsatisfactory that the status of an Irish citizen in the UK depends on when and where they had their last holiday. The recent announcement fails to recognise, let alone provide a solution to, this problem. Where there is the political will to do something, legal technicalities are often irrelevant. Politicians can, after all, change the law. Given the collective and cross party support for protecting the rights of Irish citizens in the UK, a solution will be found. However, rather than continually assuring everyone that their rights will be protected, it would be helpful if the UK Government could outline precisely what they intend to do in order in order to protect these rights, including publishing draft legislation so that the precise terms and scope of the “protection” offered can be reviewed and analysed.

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